Research On The Judicial Determination Of The Secrecy Of Trade Secret

According to the trial logic,the court determines whether the trade secrets claimed by the parties are not public information is the logical premise for the trial of trade secret disputes.Taking empirical research as the path,combing 679 judgment samples,it is found that there are some practical dilemmas and disputes in the process of the court judging whether the information involved is non-public,which affects the trial effect and quality of our country’s trade secret disputes to a considerable extent.Based on this,this paper examines the referee samples to clarify the practical dilemmas that affect the effect of non-public knowledge identification in practice,and then puts forward targeted improvement suggestions layer by layer.The main contents are as follows.First of all,it is necessary to clarify the practical significance and practical dilemma of non-public informatin identification.By sorting out the judicial status quo of the identification of non-public information,this paper clarifies the three dilemmas of the court’s determination of this element: first,there is a lack of uniform standards for the concept and meaning of nonpublic information and its constituent elements;second,the burden of proof and the standard of proof of non-public information are controversial;third,the judicial authentication opinions of non-public information have been widly questioned.The above three practical problems are also the pre-foundation for the demonstration of this paper.Secondly,by deconstructing the constituent elements and connotations of non-public information,three characteristics of non-public knowledge elements can be abstracted:relativity,objectivity and regionality.Based on this,it is necessary to clarify the conceptual boundaries between the following three pairs of categories: first,“general known” and “easily accesible” should maintain a parallel relationship;second,non-public information and confidentiality are positively correlated,and the connotations of the two do not overlap;third,non-public information implies the connotation of novelty,and novelty should not be used as a constituent element of trade secret,so as to avoid unnecessary disputes and raise the threshold of trade secret protection.Thirdly,as far as the evidence rules of non-public knowledge are concerned,by analyzing the legal background and connotation of Article 32 of the Anti-Unfair Competition Law,it is clarified that the plaintiff should bear the initial burden of proof of non-public knowledge,and it is clarified that the transfer of non-public knowledge should be borne by the plaintiff.Substantive conditions: the plaintiff clarifies the specific content of the information involved,the plaintiff proves the ownership of the information involved,the plaintiff proves that the information involved is not public knowledge;and the procedural conditions for transferring non-public knowledge: the plaintiff has exhausted all the means of proof,the defendant refuses to provide evidence against him.By combining extraterritorial judicial practice and our country’s judicial policy,a dual proof standard of non-public knowledge is constructed,that is,the standard of “high probability” is the principle,and the standard of "preponderance of evidence" is the exception.Finally,improve the non-public information forensic identification procedures,in order to eliminate the effect of practical disputes.Specifically,starting from the concept of “specialized issues”,it is clarified that non-technical information such as business information also falls within the scope of forensic identification.At the same time,combined with the connotation of non-public knowledge,it is pointed out that the technical novelty search for public information,and the novelty standard is used to judge whether the identification object has the defects of non-public information,and it is further clarified that judicial authentication institutions should adjust the scope and scope of the retrieval of public information in practice;clarify the importance of “easily accessible” in the identification process,and refer to the applicable“identity” identification standard.